Written By Sharon Singh, Christina Joynt, Martin Ignasiak, David Bursey and Deidre Sheehan

On January 18, 2023, the Province of British Columbia (Province) and the Blueberry River First Nation (BRFN) signed the Blueberry River First Nation Implementation Agreement (Implementation Agreement).

On January 20, 2023, the Province also finalized a co-developed set of initiatives (Consensus Document) with four other Treaty 8 First Nations, including the Fort Nelson, Saulteau, Halfway River and Doig River First Nations (Treaty 8 Nations).

Both the Implementation Agreement and the Consensus Document respond to the British Columbia Supreme Court's decision in Yahey v. British Columbia [Yahey], which was the first time a Canadian court held that the cumulative effects of multiple projects may form the basis of a treaty infringement.

The Implementation Agreement and the Consensus Document are novel approaches to resource development, protection of treaty rights and the management of cumulative effects in Treaty 8 territory. The precedent established by the Implementation Agreement and the Consensus Document will extend beyond Treaty 8 territory, and may have implications for resource development in British Columbia and Canada at large.

Yahey v. Blueberry River First Nation

On June 29, 2021, the British Columbia Supreme Court reached its decision in Yahey. The Court found that the Province had breached its honourable and fiduciary obligations under Treaty 8 by causing, and permitting, the cumulative impacts of industrial development to infringe BRFN's treaty rights. The Court required that the parties consult and negotiate enforceable mechanisms to assess and manage the cumulative effect of industrial development on BRFN’s treaty rights so these constitutional rights are respected. For a more in-depth analysis of Yahey, see our previous blog Recent Developments in Aboriginal Law: Cumulative Effects, Equitable Compensation and Duty to Consult.

On July 28, 2021, David Eby, then the Attorney General and Minister Responsible for Housing, released a public statement announcing the Province would not appeal the Court's decision.

Initial Agreement

On October 7, 2021, the Province and BRFN reached an initial agreement that supported "healing the land", and helped provide stability and certainty for forestry and oil and gas permit holders in BRFN's traditional territory. The initial agreement was created in response to Yahey, and was developed with the aim of reaching a final agreement.

The initial agreement provided BRFN with $65 million for land, restoration, wildlife, stewardship and cultural and capacity investments.

Our blog, Blueberry River First Nation and the Government of British Columbia Reach History Interim Agreement, provides an in-depth overview of the Initial Agreement.

Implementation Agreement

On January 18, 2023, BRFN and the Province announced that they had reached a historic agreement that will "guide them forward in a partnership approach to land, water and resource stewardship that ensures Blueberry River members can meaningfully exercise their Treaty 8 rights and prove stability and predictability for industry in the region."

The Implementation Agreement responds to the court's direction in Yahey, and builds upon the initial agreement between the Province and BRFN.

The key elements of the Implementation Agreement are:

1. Wildlife Management: The Province and BRFN are committing to bring together Indigenous knowledge and western science. Both parties will support a community stewardship, monitoring and guardian program. Further, important species will be closely monitored. For example, the Province and BRFN have committed to moose management through licensed hunter restrictions to support population recovery.
2. Land-Use Plans: The Province and BRFN will engage in collaborative land-use planning, to determine whether certain activities can occur in Treaty 8 territory. Collaborative land-use planning includes a commitment to advance watershed-level land use plans within the next three years (Watershed Management Basin Plans).
3. Petroleum and Natural Gas (PNG): The Province and BRFN will use a more collaborative approach to oil and natural gas development planning and projects. The Province, various companies and other First Nations will sit together and address: the establishment of areas for permanent protection; minimizing disturbance from PNG; reducing new disturbance from PNG by approximately 50 percent from pre-Yahey decision years; introducing operational and strategic planning expectations for the sector; and limiting overall new disturbances from PNG activities in BRFN's claim area (see Yahey at para. 14 for BRFN's claim area boundaries).
4. Forestry: The Province and BRFN will protect old growth forest and reduce timber harvesting in defined High Value (HV1) areas. Key elements of the Implementation Agreement applicable to forestry include: a cessation to aerial herbicide use; a commitment to implementing ecosystem-based management, through Watershed Management Basin Plans; and two-year harvest schedule outside the BRFN's important forestry areas.
5. Honouring Treaty 8: The Province and BRFN have agreed to work together on measures to honour Treaty 8, including improving awareness and education on the Treaty. The Province and BRFN will honour Treaty 8 by sustaining communications, sharing training and awareness building, and providing support for communications with other Treaty 8 First Nations and local elected elders.

The Implementation Agreement also includes a $200 million restoration fund, which is meant to restore the land from industrial disturbance by June 2025. Further, BRFN will receive $87.5 million as a financial package, with an opportunity for increased benefits based on PNG revenue-sharing and provincial royalty revenues in the next two years.

Province's Agreement With Other Treaty 8 Nations

On January 20, 2023, the Province finalized the Consensus Document with the Treaty 8 Nations. According to the Province, the Consensus Document will address the cumulative impacts of industrial development on the meaningful exercise of Treaty 8 rights in the territory, restore land and produce stability and predictability for industry in the region.

Much like the Implementation Agreement, the Consensus Document was based on the Court's findings in Yahey. The Consensus Document promotes responsible resource development and sustainable economic growth in Treaty 8 territory. Further, it aims to manage the impacts of industrial development through ecosystem-based stewardship and governance.

The Consensus Document sets out various initiatives to outline how the Province and Treaty 8 Nations manage the land to achieve sustainability for future generations, meet the Crown's obligations to uphold constitutionally protected rights and support responsible resource development and economic activity in northeastern British Columbia. Specifically, the initiatives outlined in the Consensus Document include:

1. a new approach to wildlife co-management;
2. new land-use plans and protection measures;
3. a "cumulative effects" management system;
4. pilot protects to advance shared decision-making for environmental planning and stewardship;
5. a multi-year, shared restoration fund;
6. a new revenue-sharing approach to support the priorities of Treaty 8 First Nation communities; and
7. actions to promote education about Treaty 8 through collaborative promotion, anti-racism training and awareness building.

The Province is still in ongoing discussions with other Treaty 8 First Nations, including McLeod Lake Indian Band, Prophet River First Nation and West Moberly First Nations.

Summary

The Implementation Agreement and Consensus Document remain confidential at the date of this publication, but are expected to be released within weeks. Although the details have not been released, it is clear those documents will create additional consultation and regulatory obligations for those seeking to develop natural resources in the affected region.

Once the details are known, it will be important to understand the co-management frameworks that are established as a result. While these documents may impose additional regulatory requirements on developers, they will also likely result in greater legal and regulatory certainty associated with approvals, both the process to obtain approvals and the recognition of approvals once obtained.

Bennett Jones has extensive experience providing advice on project development, permitting processes and Indigenous consultation. If you have any questions regarding the Yahey decision, or how your projects may be impacted by the Implementation Agreement or Consensus Document, please contact a member of the Bennett Jones Aboriginal Law group or the authors of this blog.

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